UN International Law Research Articles

The Guarani Aquifer System: From a Beacon of hope to a question mark in the governance of transboundary aquifers

Study regionLatin America. Parana Basin. Argentina, Brazil, Paraguay, Uruguay. Study focusThis article traces the trajectory of transboundary cooperation over the past fifteen years for the Guarani Aquifer System. A new insight for the regionThe Guarani Aquifer System is a transboundary aquifer shared by Argentina, Brazil, Paraguay, and Uruguay. It stands as one of the largest reservoirs of freshwater worldwide and is one of the few transboundary aquifers whose management is regulated by an international treaty, the Guarani Aquifer Agreement (GAA). The latter is also the first to refer in its preamble to the UN International Law Commission Draft Articles on the Law of Transboundary Aquifers. A first period (2002–2010) of positive collaboration in which the four countries actively moved forward towards a better understanding of the aquifer, culminated with the adoption of the GAA in August 2010. A second period (2010–2017) has been marked by a slowdown in transboundary cooperation, limited in this period to sporadic cross-border projects and initiatives linked to past and existing international projects. In this period, Argentina and Uruguay, and more recently Brazil have ratified the GAA. A third phase seems to be emerging in 2017 due to the possibility that finally Paraguay ratifies the GAA allowing it to enter into force. This article argues that in the future implementation of the agreement countries should build on the good practices, both substantive and institutional, stemming from the first period of transboundary cooperation.

Treaty-Making Capacity of Components of Federal States from the Perspective of the Works of the UN International Law Commission

The submitted paper concerns the treaty-making capacity of components of federal (non-unitary) states. As the division of powers in respect to the conclusion of international treaties between a federal state and its components is based on the provisions of internal federal law, the authors decided to start the consideration of the topic with the presentation of selected appropriate internal law regulations of federal states. Although the study concentrates on an analysis of Swiss and German constitutional rules on the subject, the provisions of i.a. Belgian, US and Canadian law are also commented upon. Therefore it apparently seems to be an important legal question.The treaty-making capacity of components of federal (non-unitary) states was comprehensively discussed during the International Law Commission preparatory works on the regulation on the law of treaties. The provisions dedicated to that issue formed part of the reports prepared by each of the ILC Special Rapporteurs on the subject. The paper presents the draft propositions submitted by them, the views of ILC members, and responses received from states.The final draft of ILC articles on the law of treaties contained a paragraph concerning the issue at stake (than art. 5 § 2 of the draft) stipulating that member states of a federal union may possess such capacity only if such capacity is admitted by the federal constitution and within the scope defined therein. Nevertheless, this issue was omitted in the 1969 Vienna Convention on Law of Treaties (VCLT). Art. 6 of the VCLT on the capacity of States to conclude treaties does not mention the rights of components of federal states. It consists of one paragraph simply stating that every State possesses the capacity to conclude treaties. And the term ‘state’ for the purposes of that regulation possesses the same meaning as i.a. in the Charter of the United Nations, that is a State for the purposes of international law, or a state in the international meaning of that term.This does not mean however that territorial units forming a part of a federal state cannot conclude international agreements. But, this issue depends both on the provisions of internal law of the given state and on the practice of the states recognising the potential rights of the components of the federal (non-unitary) states in respect to conclusion of the treaties.

Methodological Flaws in the ILC's Study on Exceptions to Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction

In July 2017, the UN International Law Commission (ILC) provisionally adopted Draft Article 7 on exceptions to immunity ratione materiae of state officials from foreign criminal jurisdiction, by a recorded vote of twenty-one votes in favor, eight votes against, and one abstention. In the view of the majority of ILC members, immunity ratione materiae does not apply to the six international crimes listed in the draft article—genocide, crimes against humanity, war crimes, apartheid, torture, and enforced disappearance—either because of a limitation or because of an exception. The unusual practice of adopting a draft article by recorded vote demonstrated the deep controversy among the ILC members themselves. After all, exceptions to official immunity lie at the core of the project of “Immunity of State Officials from Foreign Criminal Jurisdiction” that was started a decade ago by the ILC. This divisive Draft Article 7 naturally garnered criticism and equally deep controversy among states in discussions on the ILC's work report at UN General Assembly Sixth Committee in late October 2017.

The Constitution of the Russian Federation and International Law: A Theoretical Approach to the Concept of "Generally Recognized Principles and Norms of International Law» and jus cogens

The paper contains analysis of a specific concept of generally recognized and norms of international in comparison with the phenomenon designated by the term 'jus cogens' and common to the Western legal doctrine and case law. A special issue in the theoretical analysis thereof relates to a comparative law approach to the results of the past and present stages in examination of the same terms performed by the UN International Law Commission. The examination in question was affected within the framework of codification of the law of international treaties in the 60s of the twentieth century and the current specific work in respect of jus cogens. These two terms currently coexist in the international law doctrine and practice neighboring with others, i.e. the terms that are also included into the range of 'principles:' basic principles, of law, principles of general international law, etc., which requires appropriate allocation of meanings among them.

Immunity Ratione Materiae of State Officials from Foreign Criminal Jurisdiction: Where is the State Practice in Support of Exceptions?

In the summer of 2017, the UN International Law Commission adopted Draft Article 7 and an associated draft annex for its project on immunity of state officials from foreign criminal jurisdiction. The draft article identifies six “crimes under international law in respect of which immunity ratione materiae shall not apply”: genocide; crimes against humanity; war crimes; crime of apartheid; torture; and enforced disappearance. Given the divergences within the Commission when considering and adopting Draft Article 7 (as evidenced by the plenary debate in 2016 and 2017, the unusual recorded vote on whether to refer the matter to the Commission's drafting committee, and the Commentary), it is difficult to conclude that the Commission is expressing a view that Draft Article 7 reflects lex lata.

EU migration law shaping international migration law in the field of expulsion of aliens – the case of the ILC draft articles

Since the Treaty of Maastricht, EU law has become more open to international law and has engaged with it in different forms of interactions. The influence of EU law on universal law-making has found its way through different legal channels and techniques. The article thoroughly scrutinizes the impact of EU return acquis on the development of the international law governing the ‘expulsion of aliens’, which can be best analysed through the work of the UN International Law Commission (ILC) on the expulsion of aliens (2004–2014). The ILC’s approach has come a long way from the mere ignorance of EU law and the EU’s submissions by the special rapporteur in the early stages of the codification work until it has gradually taking into account major EU migration law concepts in ILC reports and in the draft articles. The 2014 ILC draft articles on the expulsion of aliens have finally been, in many aspects, inspired and influenced by EU law, especially the Return Directive (2008/115/EC). This short piece meticulously explores the inroads EU return law made in relation to the ILC work on the expulsion of aliens, by identifying and critically evaluating the tangible impact of EU law on the UN codification project.

A fragmentação do Direito Internacional: entre o discurso e a realidade do sistema jurídico internacional

O artigo objetiva analisar criticamente o discurso da fragmentação do Direito Internacional por meio de uma análise detalhada dos documentos da Comissão de Direito Internacional da ONU, verificando suas diferenças e inconsistências. A partir da crítica desta perspectiva que vislumbra na expansão do Direito Internacional motivos para o seu enfraquecimento, o trabalho destaca a visão sistêmica do Direito Internacional e sua relevância para o sistema jurídico contemporâneo. Embora a teoria da fragmentação seja base para diversos trabalhos acadêmicos na atualidade, faz-se relevante e necessário um exame detido sobre as diferentes nuances dos próprios documentos da Comissão que difundiram tal discurso, e por isso o trabalho se justifica. Adicionalmente, a atividade dos tribunais internacionais pode se dar de modo a harmonizar o sistema jurídico internacional e reforçar o papel do Direito Internacional como um instrumento universal.

International Responsibility Of International Organizations (The Draft Articles of the International Law Commission)

The law of international responsibility constitutes an important sector of international law. International Organizations are subjects of international law with legal personality, which means among other things, that they are responsible for the breach of their obligations. This paper attempts to make an introduction to the law of international responsibility by taking into account the Draft Articles of the UN International Law Commission (ILC) on the International Responsibility of International Organizations for Internationally Wrongful Acts. Also, seeks to analyze some issues related to international responsibility, such as the effective control criterion or the ultra vires conduct of an organ or a representative of international organization. The Draft Articles, either receive or not the form of an international treaty, have their own legal value and influence theory and practice.

EU Migration Law Shaping International Migration Law in the Field of Expulsion of Aliens: The Empire Strikes Back?

Since the Treaty of Maastricht, EU law has become more open to international law and engaged with it in different forms of interactions. Influence of EU law on universal law-making finds its way through different legal channels and techniques. The article thoroughly scrutinizes the impact of EU return acquis on the development of the international law governing the ‘expulsion of aliens’, which can be best analysed through the work of the UN International Law Commission on the expulsion of aliens (2004-2014). For the ILC’s approach, it has come a long way from the mere ignorance of EU law and the EU’s submissions by the special rapporteur in the early stages of the codification work until gradually taking into account major EU migration law concepts in ILC reports and in the draft articles. The 2014 ILC draft articles on the expulsion of aliens have finally been in many aspects inspired and influenced by EU law, especially the Return Directive (2008/115/EC). This short piece meticulously explores the inroads EU return law made in relation to the ILC work on the expulsion of aliens, by identifying and critically evaluating the tangible impact of EU law on the UN codification project.

Decolonisation as the Source of the Concepts of Jus Cogens and Obligations Erga Omnes

The scholarly consensus is that jus cogens emerged from the work of the UN International Law Commission on invalidation of treaties, and the International Court of Justice developed the concept of obligations erga omnes in its wake. This study challenges that perspective by demonstrating that these concepts were developed to accommodate Newly Independent States during the decolonisation process. It takes issue with the recognised starting point of the development of jus cogens in the literature: the deeply problematic piece written by Verdross; and demonstrates that leading jurists of the 1960s recognised that jus cogens was “a political concession to the New States” rather than a technical imperative of the law of treaties. The study considered the evolution of the litigation regarding Namibia before the International Court of Justice, demonstrating the communal interest which Ethiopia and Liberia sought to engage, so as to end the racist regime which South Africa instituted within its Mandate for South West Africa. The ultimate outcome, manifest in the dicta of the Barcelona Traction case, was to escape that specific litigation and transform the very fabric of international law, embedding a communal interest beyond the bilateralism of jus publicum Europeaum. The author invites scholars to look anew to the sources of this communitarian interest and points to the writing of Judge Alejandro Alvarez as one possible staring point.

Talking about Torture: How Political Discourse Shapes the Debate. By Jared Del Rosso. New York: Columbia University Press, 2015. Pp. xviii+276. $50.00.

Talking about Torture: How Political Discourse Shapes the Debate. By Jared Del Rosso. New York: Columbia University Press, 2015. Pp. xviii+276. $50.00.

The Implications of Israel's Demand to Be Recognized by the Palestinians as a “Jewish State”

This article argues that the discourse of “Jewishness” was refashioned after the Oslo agreement and intensified by the government of Binyamin Netanyahu to serve as a major pillar for the demand of recognition. The Netanyahu government has its own hidden geopolitical agenda and significantly disadvantages the Palestinian side in their quest for a state of their own. It also blocks any genuine possibility of a two-state solution to the conflict. Significantly, from the territorial perspective, asking the Palestinians to recognize Israel's pre–June 1967 borders as a “Jewish” state means relinquishing a total of 77 % of the historical homeland of Palestine, in a kind of self-exit from this portion of the country, and, in effect, handing this land over to the Israeli political class to dominate the territory. Self-exit from this portion of Palestine also means that the “Palestinian right of return,” grounded in relevant UN resolutions and international law, would be abrogated, nullified by the Palestinians the...

Содержание международно-правовой ответственности в праве ВТО: общие принципы и подходы

The present article discusses the main features of the content of international legal responsibility of the law of the World Trade Organization (WTO). Analysis of the concept of “content” of international legal responsibility is based on the Draft articles on responsibility of states for internationally wrongful acts, prepared by the UN International Law Commission in 2001, as well as the differences in the conceptual underpinnings of the responsibility, which is held on the various speakers’ issue. The author shares the view that the specificity of the institute of responsibility in WTO law in comparison with the general international law (Draft of UN International Law Commission), can be explained in terms of the fact that WTO law serves a lex specialis in relation to general international law. Review and comparison of the provisions of the Draft of UN International Law Commission and the Dispute Settlement Understanding of the WTO has allowed to conclude that the philosophy of the basic principles of the content of the international responsibility in these documents are very close to or even in the ground is the same. The article investigated the basic concept of a “violation of obligations” in WTO law and obligations of the members of the organization to terminate the offense. It is concluded that in spite of the individual features of the implementation requirements to provide “assurances and guarantees” prohibiting further violations of the WTO agreements, in general, WTO law ensures compliance with the obligation to cease the wrongful conduct.

3. Transboundary Environmental Cooperation

On 13 December, the UN General Assembly (UNGA) adopted Resolution A/RES/71/141 and took note of the draft articles on the topic ‘Protection of Persons in the Event of Disasters’ contained in Chapter IV (Protection of Persons in the Event of Disasters) of the report of the UN International Law Commission (ILC) (see Report of the International Law Commission, sixty-eighth session (2016), UN Doc. A/71/10 <http://legal.un.org/ilc/reports/2016/> at 12–73). It consists of a draft preamble and eighteen draft articles, together with their commentaries (see the Eighth Report on Protection of Persons in the Event of Disasters, UN Doc. A/CN.4/697 (17 March 2016)). At the fifty-ninth session of the ILC held in 2007, this topic was included in its program of work, and Eduardo Valencia Ospina (Colombia) was appointed as a special rapporteur. These draft articles apply to the protection of persons in the event of disasters (Article 1), and the key term ‘disasters’ is defined as ‘a calamitous event or series of events resulting in widespread loss of life, great human suffering and distress, mass displacement, or large-scale material or environmental damage, thereby seriously disrupting the functioning of society’ (Article 3(a)). Naturally, the definition is solely for the purpose of the draft articles, and this term has various theoretical and practical implications (see Daniel Farber, ‘Disaster Law in the Anthropocene’ in Jacqueline Peel and David Fischer (eds), The Role of International Environmental Law in Disaster Risk Reduction (Brill/Nijhoff, 2016) at 51–4). The draft articles are meant not to be applicable in the situations governed by international humanitarian law (Article 18(2)). Importantly, draft Article 9(1) provides that ‘[e]ach State shall reduce the risk of disasters by taking appropriate measures, including through legislation and regulations, to prevent, mitigate, and prepare for disasters,’ and the report of the secretary-general suggests that this article represents a critical contribution to the development of normative frameworks for disaster risk reduction (see UN Doc. A/71/230 (29 July 2016) at 6, para. 16). To elaborate a future convention on this topic, the UNGA invited governments to submit comments on the draft articles.

Collective Self-Defense or Collective Security? Japan’s Reinterpretation of Article 9 of the Constitution

The concept of self-defense takes such an important place in the UN Charter and international law. The concept of collective self-defense should also be interpreted and applied within the clear parameters of stated principles of the UN Charter. This is not a concept that can be elastically applied so as to cover a wide range of instances that require military action by like-minded States acting in response to contingent situations. The discussion of collective self-defense within the specific context of Japan at the moment, however, seems to involve issues larger than or beyond the traditional concept of self-defense. Arguably, some aspects of the issues posed seem to fall under the collective security realm which is reserved to the authority of the UN Security Council or which at least requires authorization or delegation from the Security Council. Using the term collective self-defense to address a wide spectrum of military contingencies to be tackled by collective security regime may not square with the provisions of the UN Charter.

Legitimate and necessary: adjudicating human rights violations related to activities causing environmental harm or risk

The UN International Law Commission and various scholars have devoted attention in recent years to the issue of the so-called fragmentation of international law. Far less consideration has been given to the proliferation, if not fragmentation, of international jurisdictions. Cross-regime issues, such as disputes concerning both labour conditions and trade, or investment and environmental regulation, pose problems because the mandates of specialized tribunals generally call for preferential, if not exclusive, application of the specific area of law for which the bodies were created. Despite this, the legitimacy of tribunals deciding matters within their jurisdiction is generally accepted, even if disputes sometimes arise over the appropriate choice of law or about how to reconcile competing interests such as between trade law and environmental protection. It is therefore somewhat puzzling to encounter questions about whether it is legitimate for human rights courts to decide human rights cases involving violations related to underlying environmental conditions or activities posing risk of environmental harm. This article examines some explanations for this situation, and concludes that it is both legitimate and necessary for human rights tribunals to hear human rights complaints notwithstanding the fact that complaints originate in environmental conditions or activities posing a risk of environmental harm with negative impacts on human well-being.

True Purpose of the Most-Favoured-Nation Clause in International Arbitration: Substantive Guarantee or Only a Cause of Action?

There are very few international law standards which have such a long standing as the Most-Favoured-Nation Clause (MFN). This fundamental norm of international treaty law was left out from the Vienna Convention on the Law of Treaties, but was developed as a separate topic of the UN International Law Commission and extensively used in the area of economic and trade liberalization. MFN has been the cornerstone of the GATT/WTO and consistently present in bilateral investment treaties (BITs). Given that there are around 2,800 BITs it is certain that MFN has been markedly present in international treaty law. On its face MFN clause provides a very powerful protection by equalizing the beneficiary of the MFN clause with all other persons (entities, States) with respect to rights and benefits. As the practice has shown its relevance is both substantive and procedural. However, this paper will not dwell much on procedural and substantive contents of the MFN. It will focus on the way the MFN is being employed as a part of litigation strategy in international proceedings. An overview of cases tends to show that MFN clause is used rather as a cause of action than as a tool for ensuring substantive protection before the dispute arises. In other words, there are few, if any, examples, which show that applicants in international investment arbitration do not invoke MFN clause while trying to ensure the most favored nation treatment during the performance of their investment, but it is rather a belated MFN argument raised by the investor before the investment tribunal for the first time. In other words, investors rarely use the clause to have what would seem to be its primary purpose: substantive protection. If this argument is raised for the first time in the proceeding, this means that MFN clause is perceived as a cause of action rather than as a genuine substantive guarantee. This approach of applicants and arbitral tribunals is criticized by the author from both deontological and normative perspective. Very simple testing of certain MFN awards can demonstrate their fallacy: retroactive construct of MFN clause makes the duty impossible to perform. Given a very genuine concept of the MFN and its effect, it is absurd to assume its automatic application. The main argument of the author is that the way the MFN is used as a cause of action demonstrates that it was never the intention of the applicants to use this clause as a ground for substantive guarantee but only for litigation strategy.

The Transfer of Risk – A Comparative Study of Indian Law, South African Law and the United Nations Convention on the International Sale of Goods

Transfer of risk determines who bears the risk on the goods if it is lost or damaged. Hence the consequences of this concept hold an important place where two parties are contracting. The consequences, the timing, and the process of transfer of risk possess many interesting questions and makes it an interesting study.The principle has been dealt in different ways in different legal systems. We live in an era where the unification of International law is being sought. This goal can only be achieved when we have a clear understanding of different legal systems and come to a draft which comprises of the best of all and thus acceptable to all Nations.This paper will however only concentrate on understanding the legal regimes of South African Law which has been influenced by Roman-Dutch Law and Indian Law which is based on Common Law. The paper will also compare the above mentioned laws to the United Nations Convention on the International Sale of Goods. A lot has been said about CISG being a failure and countries who are a party to this convention expressly opting out of it. The final analysis will try to determine whether South Africa and India not being a party to the Convention is in loss.

Regulating intervention: Brazil and the responsibility to protect

In the last decade, Brazil has engaged with the idea of an international responsibility to protect (R2P) in a notable fashion. As a frequent member of the Security Council in the post-Cold War era, the country resisted suggestions of a responsibility to intervene in humanitarian crises, fearing it would serve to justify military action outside of the scope of the UN Charter and international law. Following the adoption of R2P in the 2005 World Summit, Brazil engaged with the concept more closely. This culminated in the ‘responsibility while protecting’, a proposed addendum that would ensure clearer criteria and greater accountability of UN-authorised military interventions. This paper describes Brazilian foreign policy perspectives through this period and analyses their contribution to the political and normative development of R2P. It argues that while Brazil has become more vocal and proactive in relation to the norm in recent years, its positions remained driven by some of its most traditional foreign policy arguments: the strengthening of the authority of the UN Security Council and the establishment of a multilateral order in which all states are treated equally.

International obligations of international organizations

This article discusses the scope of international obligations of international organizations, considering different formal sources of public international law. Neither the practice nor the doctrine of international law, have shown much interest in this topic until recently. This was mainly due to a widely spread perception of international organizations, which were seen as protectors, not as violators of international law. However, when it became apparent that international organizations could be implicated in abuses of international legal rules as was the case of the UN peace missions in Somalia, Bosnia and Herzegovina, and Kosovo the topic of international obligations and international responsibility of international organizations became pertinent. The general principle of international law is that every internationally wrongful act entails international responsibility. This principle is also to be applied to international organizations as subjects of international law. In order for internationally wrongful act to exist there need to be a conduct attributable to international organizations which constitutes a breach of its international obligation, regardless of its source. However, most international obligations were established in respect of states. Thus, when working on the rules on international responsibility of international organizations, the UN International Law Commission (ILC) was facing a challenge which did not exist when they were dealing with the responsibility of states. Namely, the small number of international obligations to be applied to international organizations meant that the rules drafted by ILC were not substantiated by much practice. This is one of the reasons why the present article tries to shed some light on the situation with regard to international rules that are to be applied to international organizations. As the International Court of Justice has stated, international organizations are bound by obligations under general rules of international law (international customary law), their constitutions, or international agreements to which they are parties. However, if one were to apply, for example, international customary rules to international organizations, one would face many difficulties. This is due to the specific nature of international organizations as subjects of international law, which is reflected in their limited and functional international personality that is quite different than the personality of states. With these challenges in mind, this article analyses the practice of international law in order to identify treaty and customary law obligations applicable to international organizations. Moreover, it gives a special attention to unilateral acts as a possible source of international obligations of international organizations. Firstly, it discusses whether international law criteria for unilaterally binding commitments of states may be applied to international organizations. Secondly, it presents instances of unilateral declarations by the UN in which these criteria were met (statements of the Secretary-General of the UN). Thirdly, the article discusses rules of international organizations as sources of their international obligations, using the examples of Security Council resolutions and acts based on them (UNMIK regulations). The article concludes that although the scope of international obligations of international organizations is substantially narrower than in the case of states, the practice shows the tendency towards their broadening, especially in the field of international human rights law.